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Civil evidence - Surveillance - application - admissibility - delay - expert’s - evidence
12 May 2016
The court heard the defendant’s late application to admit surveillance evidence, concluding that the overall interests of justice required that the surveillance evidence be considered in the round at trial.
The claimant suffered an injury to her neck at work in 2007, and liability was admitted by the defendant in April 2009. There remained a dispute regarding the extent to which the claimant’s continuing symptoms were interfering with her normal daily life and affected her ability to work.
The trial was fixed to commence on 11 April for 5 days. The defendant had obtained expert evidence in 2015 which suggested that the claimant may be exaggerating her physical impairment for the purposes of financial gain. Mr Justice Foskett commented that this raised at least the real possibility of this being an appropriate case for obtaining surveillance evidence at that stage. Further, at that stage the claimant had advanced a substantial loss of earnings claim, however nothing was done about surveillance evidence.
The defendant first considered surveillance at a conference with counsel on 15 January 2016 where they concluded that it would be pursued should no settlement be achieved at the joint settlement meeting scheduled on 29 January 2016. No settlement was achieved, and whilst authority was sought from the NHSLA for obtaining surveillance evidence on 19 January, it was not granted until 17 February. Surveillance was then carried out on 18, 22, 23, 24 February and 10 March. Mr Justice Foskett inferred that the evidence obtained in February was not sufficiently comping to be relied upon and further authority from the NHSLA was required for further surveillance.
On 11 March the defendant completed and signed a Listing Questionnaire indicating that additional directions were necessary before the trial took place, but no application was made on that date for directions relating to surveillance evidence. On 18 March the NSLSA gave authority to rely upon and disclose the surveillance evidence providing that it was favourable to the defendant and on 24 March edited surveillance evidence was received by the defendant’s solicitors. It was then sent to the defendant’s experts and to the claimant’s solicitors by registered post.
On 30 March the defendant issued an application to have the surveillance evidence admitted, and requested that it be heard on the morning of 11 April, the first day of the trial period, prior to the claimant giving evidence. On 5 April the defendant disclosed a third report of their pain medicine expert commenting on the surveillance evidence.
On 5 April the claimant issued an application seeking an order that the defendant’s application notice dated 30 March should be listed before the commencement of the trial. This was heard on 10 April 2016.
The claimant’s solicitors considered themselves as the victim of an ambush and, in principle, wished to object to the reliance by the defendant upon the surveillance evidence. However, as one of the defendant’s experts had already seen and commented on the surveillance evidence, it was inevitably going to affect the evidence he gave.The judge ordered that the trial date be vacated and the matter to be returned to him for further consideration when the claimant had the opportunity to consider their position more fully. By the time of the instant hearing, the claimant and her pain medicine expert had seen and commented on the surveillance evidence, but the other experts had not.
The defendant relied upon the case of Douglas v O’Neill in its submission that it would be wholly unjust for the defendant to be precluded from relying upon the evidence purely because it was obtained close to the trial, and that there had been no apathy nor any attempt to take unfair advantage by the defendant’s solicitor. The judge agreed with the reasoning in Douglas v O’Neill that it would be difficult for an expert who had seen the surveillance evidence to put it out of their mind and not to reference it. However, this could not be a reason for a court to admit the evidence, as experts are familiar with the need not to refer to the content of any ‘without prejudice’ discussions.
The judge held that a significant factor in his decision as to whether to allow the late application was the time when a defendant ought reasonably to commission such evidence. He held that he had understood why the claimant’s advisors’ felt ambushed. He stated that, although the defendant’s solicitor was not guilty of bad faith and impropriety, the unexplained delay in obtaining the surveillance evidence before it was first suggested on 15 January 2016 was unreasonable, coupled with no real urgency being shown in pursuing it thereafter. Such delay was culpable within the way that term was used in Rall v Hume . On this basis, the defendant would have an uphill struggle trying to persuade the court that it should be permitted to rely on the surveillance evidence.
The judge made clear that he had been influenced by the fact that the claimant and one of her principle experts had been able to answer the surveillance material and the defendant’s expert’s analysis of it in a strong fashion, therefore he felt that the playing field had remained level. He ordered that the defendant should bear the costs thrown away by the vacation of the trial date, and the costs of the two hearings of the defendant’s application notice.
The judge also held that if there is a problem with the application of the present rule, it is a matter for the Civil Procedure Rule Committee to consider. However pending any such consideration, if thought necessary, more liberal use may be made of the kind of order made in Leary v Tunnelcraft Ltd. An order with a ‘date by which’ provision will, if disobeyed, bring into focus the relief from sanctions jurisdiction and any application to deploy the evidence will fall to be assessed by reference to the approach in Denton. Such an order would also focus in the defendant’s mind the need to address the issue in a timely way so that they are not accused of trying to ambush the claimant.
Kim Pryce & Victoria Brown, Anthony Gold